Land measuring 5 Kanals, 6 Marlas situated in village Lutar, description whereof has been given in the plaint was purchased by the petitioners from Feroz Din, Ilam Din and Muhammad Shafi, brothers inter se on 12-6-1991, which was sought to be pre--empted by the respondent, that she was co---sharer in the Khata, by filing a suit for pre--emption. The suit was contested by the petitioners. It was tried and was dismissed by the learned trial Judge vide judgment and decree dated 29-3-1993, qua the finding on Issue No. 1 i.e. Failure to fulfil the requirements of Talbs, that judgment was assailed through an appeal filed by the respondent which was accepted by the learned Appellate Court vide judgment dated 12-9-1994, and her suit was accordingly decreed.
This is revision petition by the vendees-defendants.
2. The learned counsel for the petitioners has criticized the approach of the learned Appellate Court by referring to the evidence on the record that there were material contradictions in the depositions of the respondent-plaintiff and her witnesses. It is contended that such contradictions were sufficient in itself to show that they were not "truthful witnesses" and the suit was rightly dismissed by the learned trial Court It is contended that the prerequisites for the exercise of right of pre-emption having not been fulfilled, right of pre-emption stood extinguished in view of section 13 of Punjab Pre-emption Act, 1991. The learned counsel for the respondent, while supporting the judgment and view taken by the Appellate Court contends that minor discrepancies in the statements of the witnesses were not of material effect, and it cannot be held that they were not truthful witnesses. It is further contended that right of pre-emption being a substantive right, whereas requirements of Talbs being a procedural matter, the substantive right could not be nullified thereby, even if there were some procedural deficiencies in making Talbs.
3. In order to comprehend the manner in which right of pre-emption is to be exercised and the effect of non-fulfilment of Talbs, the perusal of section 13 of the Act is of relevance and importance.
It is reproduced hereunder: -- "13. Demand of pre-emption.---(1) The right of pre-emption of a person shall be extinguished unless such person makes demand of pre-emption in the following order, namely:--
(a) ' Talb-i-Muwathibat' ;
(b) ' Talb-i-Ishhad' ; and
(c) ' Talb-i-Khusumat'.
Explanation 1.'Talb-e-Muwathibat' means immediate demand by pre-emptor, in the sitting or meeting (Majlis) in which he has come to know of the sale, declaring his intention to exercise the right of pre- emption.
Note.---Any words indicative of intention to exercise the right of pre--emption are sufficient.
II. Talb-i-Ishhad means demand by establishing evidence.
III. 'Talb-i-Khusumat' means demand by filing a suit.
(2) When the fact of sale comes within the knowledge of a pre-emptor through any Source, he shall make Talb-i---Muwathibat.
(3) Where a pre-emptor has made Talb-i---Muwathibat under subsection (2), he shall as soon thereafter as possible but not later than two weeks from the date of knowledge make Talb-i- Ishhad by sending a notice in writing attested by two truthful witnesses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-- emption: Provided that in areas where owing to lack of post office facilities it is not possible for the pre- emptor to give registered notice, he may make Talb-i---Ishhad in the presence of two truthful witnesses.
(4) Where a pre-emptor has satisfied the requirements of Talb-i-Muwathibat under subsection (2) and Talb-i-Ishhad under subsection (3), he shall make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emption."
Subsection (1) of section 13 makes it unequivocally clear that the right of pre--emption shall be extinguished unless demands (Talbs) are made in the order laid down and manner prescribed by law. Use of the word "unless" when considered in its content as stated in the Black's Law Dictionary, 6th Edition (1993), page, 1536, leaves no scope for doubt that the exercise of right of pre--emption has been made conditional and dependent upon the making of demands in the manner prescribed by law. Explanation I, gives out the manner in which Talb-e---Muwathibat is to be made. It has now been established by the precedents that such is a jumping demand by the prospective pre--emptor as soon as he comes to know of the sale. As per Explanation II Talb-e- Ishhad means a demand by establishing evidence. Subsection (3) of section 3 makes it abundantly clear that a notice of Talb-e---Ishhad, is required to be "attested by two truthful witnesses". Thus great emphasis has been laid by the Legislature that the attestation should be by "truthful witnesses". Such a stress by the Legislature is of special significance and cannot be ignored. The criteria of such witnesses being truthful or not will be their statements, made in the case before the Court. Reference made by the learned Appellate Court to Article 3 read with Article 2(1) (c) of Qanoon-e-Shahadat Order, 1984, was inapt in the presence of the said emphasis made by Legislature that the attesting witnesses have to be truthful. It may be observed that competency of a witness to testify and his being truthful or otherwise is not the same thing. It is, thus, to be seen in the context of the statement made by each of the witnesses, whether he was truthful or not.
It is in this context that the statements made by the respondent and her two witnesses have been read out before me which have been considered.
4. According to the case set up by the respondent particularly in paragraph 2 of the plaint, she came to the house of her brother Muhammad Shafi (one of the vendors) on 23-9-1991, where she was told by Muhammad Aslam and Muhammad Tufail about the sale of the suit land. Sardaran Bibi respondent-plaintiff, appeared as P.W.1 and stated that she came to know of the sale in the house of Muhammad Shafi and then went to the house of the petitioners-vendees in the company of Muhammad Aslam P.W.2 and Muhammad Tufail P.W.3 and made a demand by offering sale consideration. It was stated in cross-examination that Muhammad Aslam vendee was soldier in Pakistan Army and that he was present in his house. It was stated by her that she was told by her brother about the sale of the land whose name was Muhammad Shafi. It was also stated by her that Muhammad Aslam P.W.2, was son-in-law of Muhammad Shafi and that when we reached the house of the petitioners-vendees, Muhammad Ashraf vendee-defendant, came out. She denied the suggestion that she was telling lie. Muhammad Aslam P.W.2 contradicted Sardaran P. W.1, about his relationship with Muhammad Shafi. He also contradicted that it was Ibrahim father of the petitioners-vendees, who came out of the house, when they visited them and it was Ibrahim with whom Sardaran Bibi, discussed the matter. According to Sardaran Bibi, it was Ashraf, with whom the matter was talked about. They also contradicted each other as to who was in any. According to Muhammad Aslam, P.W.2, Muhammad Ashraf was in Pakistan Army, Muhammad Tufail P.W.3, -is husband of respondent-plaintiff, he narrates the version of visiting the house of petitioners- vendees and that Muhammad Ashraf was in Pakistan Army. He states that the door was open when they entered the house of the vendees and remained there in that house for 1/2 hours. He was contradicting his were Mst. Sardaran Bibi, who had stated that they remained there for 2/3 hours. No date and time about the knowledge of sale was disclosed by him and used a loose term "" it was such a state of evidence considering which the trial Judge by noting the contradictions recorded his findings and observations that the witnesses were not "truthful". Whether the version given by them he described as "contradictions" or "discrepancies", the over all import and impact of their depositions is that they were not consistent and by no standard their testimony be regarded as truthful. It seriously reflected upon the assertion of the respondent --plaintiff not only as to whether the notice was attested by two truthful witnesses, but also the initial demand i.e. Talb-e-Muwathibat.
5. There is another aspect worth taking note of which is that according to her version, she came to know of the sale from and in the house of Muhammad Shafi her brother, one of the vendors. He was not produced which gave rise to an adverse inference. In Muhammad Mal Khan v. Allah Yar Khan (2002 SCM R 235), the person in whose presence Talb-e-Muwathibat was sated to have been made, was not produced as a witness. It was thus observed by their lordships that "the legal presumption would be that in case he had been produced, yet his deposition must have been against him". The testimony of Muhammad Shafi the brother of the respondent-pre-emptor, would have been of relevance and importance, but he was withheld and not produced as Witness. I am thus on consideration of the contents of the plaint and the statements of the witnesses produced by the respondent and her own statement left with no manner of doubt that the version pleaded and sought to be proved was fraught with inherent contradictions, discrepancies and inconsistencies. The statements of witnesses were wholly untrustworthy.
6. In so far as the contentions of the learned counsel for the respondent that substantive right of pre-emption could not be defeated by non-observance of requirements of Talbs, is concerned, suffice it to observe that the same does not find support from section 13. In Abdul Qayyum v.
Muhammad Rafique (2001 SCM R 1651), it was held that provisions of section 13(3) of the Act is mandatory in nature because performance of Talb-e-Ishhad has been considered to be one of the most "important conditions for enforcing right of pre-emption". Taking all these circumstances into consideration, i.e. Contradictions and inconsistencies in the statements of the witnesses produced by the respondent-plaintiff, which in the facts and circumstances of the case and context were of material effect and non-production of Muhammad Shafi militates against the right sought to be enforced by the respondent. I am thus unable to maintain and affirm the view taken by the learned Appellate Court, his judgment is not sustainable in law and is set aside.
As a result of the above, this petition is accepted, setting aside the judgment of the learned Appellate Court dated 21-9-1994, the judgment of the trial Court is restored. No order as to costs.